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The Sovereign Battle over a Sovereign Jerusalem …Continues!

by Dr Harry Hagopian, LL.D

Doctor in Public International Law
September 24

Glory be to Him who carried His servant by night from the Holy Mosque to the Farthest Mosque, the precincts of which We have blessed, that we might show him some of our sins. He is the All-Hearing, the All-Seeing. Sura XVII: 1

If I forget you, O Jerusalem, let my right hand wither, … if I do not set Jerusalem above my highest joy. Psalm 137

… and you shall be my witness in Jerusalem … and unto the end of the earth. Acts 1:8

In a wide-ranging interview with Herb Keinon in the Friday supplement of the Jerusalem Post on 22 September 2000, MK Yossi Beilin - Israeli Minister of Justice and Acting Minister of Religious Affairs - said that “nobody is suggesting to divide Jerusalem or anything like that.” He added that “the question is how we are going to call the arrangement [on Jerusalem]. Is it sovereignty or non-sovereignty - suspended, joint, custodian, extra-territorial? This is a search for an adjective.”

Indeed, this search for an adjective - or as some would call it an exercise in legal semantics - was the focus of my earlier article some three weeks ago. At the time, I wrote an overview on the concept of sovereignty in International law, and referred to case law to support my own assertion that the optimal solution for the Old City within the walls would be a system that would either ‘suspend’ awhile the discussions on sovereignty, or else ‘divest’ the issue completely from the negotiations and focus instead on a system of control mechanisms that would run this parcel of land.

In the earlier article, I had also emphasised two pertinent legal points that have been steadily addressed by eminent international lawyers such as John Whitbeck or John Quigley, as much as by many jurists and political leaders. The first point stated that all post-1967 land is considered as occupied by Israel, that the annexation of Jerusalem in 1968 was a unilateral Israeli action that does not carry the weight of universal acceptance, and that all relevant international resolutions and instruments are binding and applicable. My second point affirmed that the issue of sovereignty - whether international, joint or even vertical / horizontal - remained as yet undecided since Israel itself does not possess sovereignty over those lands. A country through recognition acquires sovereignty as a legal concept; it is not applied by the country itself on any particular landmass. Jurisprudence and International law - not least Ethiopia v Eritrea - are quite clear on this issue.

Today, I would like to stretch my earlier article slightly by expounding on how my proposal(s) could be implemented on the ground so that we draw nearer to what the famous international jurist and law professor Ian Brownlie once called ‘the principled fudge on de facto sovereignty’. Indeed, despite one set of learned legal thought that sovereignty must always be absolute and non-negotiable, I would suggest that the veil separating ‘sovereignty’ from ‘control’ is gossamer thin. In an increasingly trans-national and trans-global world (with all its attendant merits and ills), the leap from absolute possession and power to factual possession and control has become the landmark of international relations and the trade mark of many international treaties and cases.

What makes Jerusalem stand out as an issue - amongst a host of otherwise unresolved issues - is not solely its religious role as a cradle of three monotheistic religions. It is not simply its political aspect either. By its very definition and constituency, Jerusalem is also the over-burdened reservoir of fuliginous emotions - political, religious, social - as much as the willing receptacle of collective memories. Jerusalem - with its two peoples and three religions - is a daily transcendental reminder of the urgent emotions and historical memories it foments in all its peoples - from the most religious sheikh, rabbi or priest to the least religious man, woman or child. Does it not feel at times that we are persistently re-enacting Moses’ vision at Mount Nebo, reliving Mohammed’s dream-like ascent to heaven or rewinding Jesus’ Passion from the Golgotha of pain to the joy of his Resurrection? Are we not also steadfastly competing with a legacy of aggregated memories, and thereby seeking identification and equality both in their substance and acknowledgement? How can any politician deal with a flurry of emotions or memories so strong, so focused, so zealous, so self-consuming? In the words of the French atheist philosopher Bernard-Henri Levy, “how can the mundane assume the veneer of the incarnational without irrational pain?”

Let me simply go to the kernel of the matter. Speaking in my own personal capacity insofar as a son of Jerusalem and a faithful of its many Churches, I believe that West Jerusalem should become the official and sovereign political capital of Israel, just as East Jerusalem should become the official and sovereign political capital of the future Palestine. With minor modifications and land swaps that both negotiating partners need to take on board and decide upon, and minus the irrepressible denials, inevitable demurs and volatile hedges, the demographic, geographic and political realities would assume that this is the likeliest, most pacific and most durable outcome of the current spate of negotiations.

However, the issues as I perceive them become more blurred once they relate to the Old City itself. This is where Israeli Jews revere the Western Wall as their foremost religious symbol world-wide. This is also where Palestinian Muslims revere the Haram al-Sharif (or the Noble Sanctuary) as their foremost religious symbol in Jerusalem and the third holiest shrine of Islam world-wide. This is where Christians - mostly though not exclusively Palestinian in their cultural and political make-ups - have a large number of religious shrines ranging from Gethsemane to the Church of the Resurrection, from the fourteen Stations of the Cross to the Chapel of the Ascension, from St Mark’s Church to Pater Noster. They too revere those sites that are intimately tied into a biblical story that narrates Jesus’ ministry on earth. Those two peoples - Palestinians and Israelis - and those three religions - Jews, Christians and Muslims - cannot easily relinquish their own symbols, nor can they release their custodianship of those shrines.

So I come back to my original and earlier thesis! Can we not focus our thinking - and negotiations - on win-win formulae that take into consideration those religious symbols? In a multi-cultural environment, what are needed are structures that will involve both the religious and lay people anto tanto in their administration. Therefore, I propose that the Old City become a ‘spiritual capital’ where the issue of de jure sovereignty will be ‘suspended’ or ‘divested’. The administration of the four quarters of the city intra muros will reflect their demographic make-up whereby the Muslim, Christian and Armenian quarters will fall under the political control of Palestine, and the Jewish quarter will fall under the political control of Israel.

In such a plan, the Western Wall and the Haram al-Sharif will become mirror images of one another. The Western Wall and its esplanade will be managed by the Chief Rabbinate in accordance with Jewish faith tradition. Israel will provide for its security. The Islamic Wakf as has happened for the past thirty-three years anyway will manage the Haram al-Sharif, and Palestine will provide for its security. The Churches themselves will manage the Christian holy places as much according to their time-honoured rights as by the provisions of the Status Quo. Palestine will provide for their security too. This scenario for the four-quartered land, as well as the administration of its holy places, would define the special statute. And for matters ranging from sanitation to sewers to building permits to tourism, the Palestinian municipality of East Jerusalem will assume control of the municipal and daily needs of the Muslim, Christian and Armenian quarters whereas the Israeli municipality of West Jerusalem will assume control of the municipal and daily needs of the Jewish quarter. An umbrella municipality that co-ordinates both structures becomes a discretionary option.

Any new ‘arrangement’ on the ground, however, will be fraught with disputes. This requires a higher authority that will ensure the implementation of such an arrangement and resolve any foreseeable conflicts. This can be achieved through guarantees that come from the United Nations - and perhaps even from its permanent Security Council members. But such guarantees cannot simply be ‘ink on paper’ - written today and ignored tomorrow. In order to acquire the force of law - and thereby become legally enforceable - those guarantees have to be incorporated into the Palestinian and Israeli legislation. The guarantees become legal, the authority for resolving all disputes becomes lawful, and the holy places will - in practice - enjoy an international legal animus that ensures unbiased implementation. Given that the city will remain open, with no concrete walls, the fundamental rights of movement, transport and worship - let alone all others relating to citizenry, conscience and equal development - will be duly respected by all parties.

Can this scenario be achieved, and how? I believe that it can be achieved, but with immense difficulty. And the difficulty is not in finding creative solutions to practical problems! Rather, it lies in seeking the prophetic courage to admit that peace depends on justice, dignity and security as well as on good will and good faith. True, peace on paper today will not be followed by peace amongst ordinary Palestinians and Israelis tomorrow! That will require at least one or two generations so that the bitterness, wounds and mistrust from both sides can gradually be healed. However, this scenario can perhaps in the very least provide the adjective that MK Yossi Beilin seeks, an adjective that could also double up as its key.

In the final analysis, such a peace can underscore the psalmist’s inclusive cry in his hymn of praise of Jerusalem, “The Lord will write a list of the peoples and include them all as citizens of Jerusalem” Ps 87:6.